Sunday, June 21, 2009

Secret Courts and Immigrants

You don't need to go to Iran or North Korea to findsecret courts. They're alive and well right here in theUnited States. On March 26, 2009, I was denied access toimmigration courts in Eloy and Florence, Arizona, eventhough a federal regulation states, "All hearings, otherthan exclusion hearings, shall be open to the public"with a narrow range of exceptions--none of which werecited as a reason for excluding me.

Editor's Note: An earlier version of this reporterroneously stated that the fences around the Eloy,Arizona detention center were electrified. In fact, theyare not.

I'd heard horror stories about mass hearings and thehumiliation of detainees by Immigration and CustomsEnforcement (ICE) attorneys and judges, and I wanted tosee for myself. But a guard told me only family membersor attorneys could be admitted. An attorney in the lobbyaffirmed the legality of my request and invited me toattend his hearing. After waiting forty-five minutes andmissing his hearing, I was told by the head of securityto go to my car and call Eloy's ICE office. That's whenI learned that detention centers across the country wererestricting public access to immigration courts.

Mark Soukup, Eloy's supervisory detention anddeportation officer, explained that ICE required anyoneentering the immigration courts at Eloy to undergo abackground check, for which one would need to submit inwriting two weeks in advance one's name, date of birth,Social Security number, a home address and theparticular hearing one wanted to attend. "The problem isthat anyone with a felony or misdemeanor conviction inthe last five years can be prohibited to come in forsecurity reasons," Soukup explained.

The Eloy immigration courts are housed in a buildingbehind two fences topped with barbed wire. You must bebuzzed through two gates to enter the building. Accessto the courts themselves requires going through a metaldetector in a lobby with several guards and anotherlocked door. Mentioning this, I asked Soukup how abackground check enhanced security. He told me thesewere the rules that applied to everyone, includingcontractors. I replied that contractors did not have aright to work at a detention center, but the public hasthe right to attend immigration proceedings.

Lee Gelernt, the American Civil Liberties Union attorneywhose arguments persuaded Judge Keith in the 2002 casethat forced Attorney General John Ashcroft to rescindthe exclusionary policy, finds the two-week prescreeningpolicy unacceptable: "It is critical that the public andpress have access to immigration proceedings to ensurethat the proceedings are conducted fairly and consistentwith due process principles. It is absolutely unlawfulfor the DHS to place unreasonable restrictions on accessto immigration court."

Central Arizona is not lacking in immigration courts indetention centers, so I drove about thirty miles to theFlorence Detention Center, which also had immigrationcourt hearings scheduled that day. A judge at Florencehad just deported a US citizen born in Colorado. I wascurious about the courtroom demeanor of someone whowould credit a 17-year-old's statement renouncing aclaim to citizenship signed after a Border Patrol agenthad torn up a copy of his birth certificate andthreatened him with arrest, and would ignore his laterfreely made, sworn statement stating he was a UScitizen.

The statement signed at the border is evidence ofnothing except government misconduct. What kind ofperson ignores a birth certificate and extensivedocumentation of birth in a Denver hospital, includingnewborn infant reflex tests and an enlarged photo of therespondent holding the exact same birth certificate whenhe was about eight years old, and decides to permanentlyremove a US citizen from his country and render himstateless? How does he conduct his hearings? What washappening that day in his Florence courtroom?

I can't answer these questions because I was refusedentry. After standing twenty minutes at the front gate--there's a sentry post regulating cars and foot traffic--the ICE guard said they would not allow me to enter,only attorneys and family members. I asked him if he wasaware that immigration courts were supposed to be opento the public. He was affable, and said, "Yes, I know. Ithought it was going to go good but then they called asupervisor and they said, 'No, we're not letting herin.'" He also gave me a phone number for ICE atFlorence. The agent answering said that I needed tospeak with someone else and then connected me to awoman's voicemail. No one returned my call that day oron subsequent occasions. The immigration courts atFlorence are either closed to the entire public or arescreening for ICE critics. Both actions are illegal.

In an interview, Representative Zoe Lofgren, aCalifornia Democrat and chair of the House subcommitteeoverseeing immigrant rights, expressed concern about thepublic's exclusion from immigration courts in detentioncenters. "A federal regulation requires proceedings tobe open. The public has a right to attend these hearingsunder this regulation and any limit of this is inviolation of this regulation," with the exceptions,Lofgren noted, of restrictions imposed at the discretionof the judges--for asylum claims, cases of sexual abuseor at the request of the respondent.

The Executive Office of Immigration Review (EOIR), anagency in the Department of Justice charged withmanaging immigration courts, reports that in 2008 itsjudges decided 134,117 deportation cases, of which 48percent were for detainees. The individuals facingdeportation hearings in these remote sites--far fromtheir families, indigent and without attorneys--are themost legally fragile population in the country. Theleast the government can do is follow the law and allowpublic access to the courts. ICE is physically barringentry into the immigration courts in detention centers,but the real culprit is the EOIR. If that agency, underthe Department of Justice, cannot arrange to allow thepublic into immigration courts in detention centers,then the Justice Department should house the courts inother facilities.

Mary Naftzger, a member of the Chicago New SanctuaryCoalition who frequently attends immigration hearings,said, "We have feedback from lawyers who say the judgesare more respectful when court watchers are there." Sheexplained that most of the respondents do not haveattorneys and that judges ask them questions en masse"rather than examine their cases individually, apractice that changes once the court watchers arrive."

ICE and EOIR spokespersons state that a screeningrequirement is consistent with public access. But unlikeother courts, those in the detention centers had nocourt watchers from the public that I could locate.

When I asked Tracy Blagec of ABLE, an interfaithcoalition of churches, grassroots groups and unionsdoing immigration court watching in Atlanta--where thehearings are open to the public--how a screeningrequirement would affect her willingness to attendhearings, she said, "I wouldn't feel good about that,especially with it being Homeland Security. You justwonder what's it going to lead to," and she speculatedabout one's name being on a list flagged for securitychecks in airports or other forms of governmentharassment. She concluded that pre-screening would be"detrimental for the immigrants because it wouldseverely limit the people who are advocating for them."

Blagec pointed out that this policy also gives the DHS ahandy list of immigrant rights activists. DHS has one ofthe largest surveillance operations in the world. Whowants to be on that list? ICE Spokesperson Kelly Nantelsaid she did not know if ICE retained the names of thoseit screened in any database.

Naftzger, the Chicago-based activist, said a screeningrequirement would reduce participation in their program"a lot. Some of [the court watchers] are students, orhave very busy schedules, and would not be able tosubmit that information two weeks ahead of time. Wewould resent doing that because it's a public courtroom.It fits an image that ICE may not want to portray, thatall citizens are suspect, that they lump everyone as apotential suspect and can't trust people to come to intoa public courtroom and behave."

"The only thing I want a courtroom to do, for thedetained or non-detained, is make sure no one's carryinga knife or gun," said Dan Kowalski, an Austinimmigration attorney and expert on immigration courtprocedures. Beyond that they have no business knowingthe identity of the people going into the courts."

Hannah August, spokesperson for Department of Justice,minimized the screening requirements. "You just need togo through security, like a metal detector. You alsoneed to get rid of your cellphone," she said. How wouldone know how to obtain prescreening? I asked. "To findout the rules you have to contact the facility." I toldher that no one had answered the phone at Florence. "Yougo there." I told her I was calling from the front gate,and I reminded her that it took two weeks at Eloy for aprescreening, to which she replied, "What I've heard isthat it's more like a day turnaround." When I asked herwhere she heard this, August said, "I can't go into thisfurther."

ICE spokespersons say that as a result of inquiries oncourt access by public radio reporter Claudine LoMonacoand myself, Dora Schriro, a special advisor to HomelandSecurity Secretary Janet Napolitano, is includingimmigration court access under the policies she isevaluating. If the policy is not changed, Kowalksi sayshe and other civil liberties lawyers will file alawsuit.